' MUHAMMAD BASHIR JEHANGIRI, J.---This petition in a murder case is directed against the judgment of Peshawar High Court, Peshawar, dated 24-3-1999 whereby the conviction of the petitioner for the offence of Qatl-iAmd and sentence to death as Taazir with a fine of Rs,50,000 as compensation to the legal heirs of the deceased or to suffer six months imprisonment was upheld and his appeal was dismissed. Murder Reference No,9 of 1997 submitted by the learned Sessions Judge, Nowshera was also confirmed.
2. The facts noted in the petition for leave to appeal are that Rashid Khan (P.W.5) reported the occurrence of the murder of Gulman Shah deceased on 16-3-1994 at 1230 hours to Gulzar Khan, A.S.I. (P.W.7), of Police Station Azakhel District Nowshera. The case of the prosecution is that on the date of occurrence at 11-30 a.m. Rashid Khan (P.W.5) alongwith Gulman Shah deceased and Chaman Khan (P.W.6), were on their way from the Hujra of Aftab Khan to Dheri Kati Khel when they confronted Anar Gul petitioner and Hashim Ali his co-accused since acquitted who were armed with fire-arm. Anar Gul petitioner called Gulman Shah deceased and when he reached near him, the petitioner started firing at him with his pistol resulting in his death. The complainant and the P.W. Chaman Khan could not apprehend the petitioner because of threat hurled by Hashim Ali his co-accused (since acquitted) with dire consequences.
3. No specific motive was set up in the F.I.R. Nonetheless it was generally alleged that the deceased had blood fued enmity in the village and that his relations would be able to give the same.
4. Gulzar Khan, A.S.I., (P.W.7) after taking down Murasila Exh.P.A./1 sent it to the police station for registration of the case, where it was duly incorporated in the Register of F.I.Rs, at 13.00 hours by Gul Akbar Moharrir (P.W.8). Gulzar Khan (P.W.7) prepared the injury sheet Exh.P.M./1 and inquest report Exh.P.M/2 of the deceased and despatched the dead body to the mortuary for post-mortem examination. During the spot inspection, he secured blood-stained earth and three empties of .30 bore pistol P-2 vide memo. Exh.P.C./1 and Exh.P.C/2 and sealed them into a parcel. He prepared the site plan Exh.P.B. With all its foot notes at the behest of eye-witnesses. As the accused were not traceable, warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Were issued. After investigation of the case the challan was submitted against the accused under section 512, Cr.P.C. The petitioner and his co-accused (since acquitted) were arrested by Rahim Khan A.S.I. Of Police Station, Azakhel, on 20-11-1994, as is gleaned from the original record.
Supplementary challan was submitted against the petitioner and his co-accused by Muhammad Ishfaq P.W.11. The post-mortem examination conducted by Dr. Muhammad Nughman Khan (P.W.12) on 16-3-1994 at 1-45 p.m. Who noted the following external injuries on the dead body of the deceased.
(1) A fire-arm entry wound,wound of size about 1 x 1 c.m. At left angor to mandible about 3 c.m.
Enterior to left ear and 2 c.m. Downward from left ear.
(2) A fire-arm exit wound of size about 3 x 2 c.m. At upper part of left temporal region of scape.
(3) A fire-arm entry wound at left side base of neck posteriorly or size about 1 x 1 c.m.
(4) A fire-arm exist wound at left maxilla of size about 3 x 2 c.m.
(5) Fire-arm entry wound at left arm anterior laterally or size about 1 x 1 c.m. About 5" below tip of left shoulder.
(6) A fire-arm exist wound at posterior portion of left maxilla of size about 2 x 2 c.m.
(7) A fire-arm entry wound at centre of amibilicus about 1 x 1 c.m.
(8) A fire-arm exit wound at right posterior side of chest at lower end of scapula of size about 2 x 1 c.m. At 8th intercostal space.
5. On internal examination, scalp, skull, brain and meninges, walls, ribs, cartilages, plearuraem, right lung, left lung and blood vessels were found injured. Stomach was injured and contained semi- digested food. Small and large intestines, lever, diaphragm, peritoneum, abdominal walls and mouth of pharynx were also found injured:
6. The prosecution placed reliance on the evidence of eye-witnesses, namely, Rashid Khan (P.W.5), Chaman Khan (P.W.6) and the testimony of Akbar Shah father of the deceased (P.W.9) in the nature of resgestae, the statement of Gulzar A.S.I. (P.W.7) who had taken the aforenoted investigative steps in the case.
7. The petitioner and his co-accused in their statements before the trial Judge besides denying the charge professed their innocence.
8. The learned trial Court believed the ocular evidence, medical evidence, the recovery of the crime empty from the spot, the blood-stained earth, the abscondence of the petitioner and his co- accused and the effective role of the petitioner and convicted Anar Gul "for committing Qatl-i-Amd of Gul Man Shah under section 302, P.P.C." and sentenced him to death by way of 'Tazeer'. The petitioner was also directed to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased, failing which he was directed to suffer 'six months imprisonment". The petitioner filed an appeal against his conviction and sentences in the High Court. The learned Division Bench who was seized of the matter dismissed the appeal vide judgment, dated 24-3-1999. The reasoning for upholding the convictions recorded against and the sentences awarded to the petitioner in para. 17 is as under:-- "Having considered the record on the file we are of the considered view that the presence of the two ocular witnesses, namely Rashid Khan and Chaman Khan at the relevant time is fully established and their testimony is above board. The testimony of these witnesses is fully corroborated by the fact that the blood-stained earth was taken from the spot shown to the Investigating Officer by them and the three crime empties recovered soon after the incident coupled with the fact that the appellant was attributed a pistol in the report having been used as a weapon of offence, and his abscondence. Besides, the presence of the eye-witnesses aforesaid with the deceased, has not been controverted anywhere on record. There is nothing to suggest that the aforesaid two ocular witnesses had brought the charge against the appellant on account of malice or they have substituted the appellant for the real culprits, so as to discredit their testimony."
9. Mr. Khawaja Muhammad Khan, learned Advocate Supreme Court, in support of this petition has contended that the presence of both the P. Ws. Rashid Khan (P.W.5) and Chaman Khan (P.W.6), at the time and place of occurrence has not been established beyond reasonable doubt as both of them appeared to be chance witnesses and could not be relied upon. He also argued that both the witnesses could not be termed as natural witnesses because their presence at the spot was improbable. It was also urged that the presence of the aforesaid witnesses on the spot was doubtful as the explanation given by them of their being present at the place of occurrence is fanciful and could not be held as reliable. Regarding motive, it was argued that as there was no motive either set up or proved in the case, therefore, it adversely effects the case of the prosecution. Reliance was placed on Naubahar v. The State (1999 SCM R 637). On the point of recoveries, it was argued that recovery of crime empty is affected with a view to sending them to the Forensic Science Laboratory alongwith the weapon of offence for the purpose of matching and since they were not sent for examination, the recoveries have got no evidentiary value in this case.
It was lastly submitted that the exercise of discretion by the trial Court as well as the High Court should have been in accordance with the canons of justice and not arbitrary and fanciful and regard should have been had to the evidence in its true perspective.
10. With the assistance of the learned counsel for the petitioner, we have gone through the entire record of this case for reappraising the evidence. To prove its case, the prosecution had placed reliance upon the ocular testimony of Rashid Khan complainant (P.W.5) and Chaman Khan (P.W.6).
Both the vitnesses are not at all related inter se or to the deceased. They were merely colleagues of the deceased. Learned counsel for the petitioner criticized the ocular testimony of these witnesses saying that they were interested and, therefore, it was incumbent upon the prosecution to have brought on the record independent corroborative evidence to lend strength to it. Being colleagues of the deceased, the two eye-witnesses cannot possibly be termed as "interested witnesses" because interested witness is the one who has an animus for false charge against the accused. In the cross-examination of both the witnesses we find that no such enmity had been elicited justifying the conclusion that they were interested witnesses. We have also examined the inherent worth of the testimony of the eye-witnesses and find that nothing has been brought in the evidence to discard it on this score. Conceding for a while that they had an animus for false charge, the independent corroborative evidence was required which in this case is furnished by the abscondence of the petitioner which he has not been able to explain. The principle enunciated in the case of Naubahar. (supra) is well-settled that when prosecution had set up a motive but failed to prove, it has an effect on the nature of the sentence to be awarded to the convict. In some cases when the motive was set up but was not proved by the prosecution, the sentences awarded to the convict were altered to the imprisonment for life. Nonetheless the analysis of the case-law on the subject shows that there is no uniformity of approach regarding the consequences of the failure or otherwise of motive on the credibility of evidence. It appears so because resolution of the question depends upon the facts of each case. The survey of the case-law on the subject also shows that motive is a matter of speculation and does not constitute necessary ingredients of offences, therefore, the failure of the prosecution to set up any motive ordinary would not affect the authenticity of the prosecution case. In the case of Manzoor Ahmad v. The State (PLD 1983 SC 197) a Full Bench judgment has taken notice of this aspect of the motive in detail. The effect of the omission to set up a motive and failure to prove it or complete absence of any motive in, the case on the question of sentence was considered and it was observed as under:-- "In matter of sentence also although there seems to be fairly established practice: that failure of motive asserted by the prosecution reacts on the question of sentence, so as to reduce the same (on the assumption that crime might have been committed on account of such a motive which was relevant qua the accused to earn reduction of sentence) yet, in some exceptional cases, the failure of motive simpliciter was not considered as mitigating circumstances because of other circumstances indicating that, notwithstanding the failure of the prosecution to establish the motive asserted by it, the crime was not committed on account of a laudable or any such motive due to which sentence could be reduced.
11. In the instant case, as stated earlier, neither any motive was set up in the F.I.R. Nor it was later on indicated and proved. Motive being squarely known to the accused is at times not set up. If no motive is set up and there are no exceptional circumstance to attach significance thereto, it would have no adverse effect on the question of sentence.
12. We are, therefore, of the considered view that, in the facts and the circumstances of this case, the absence of motive in the instant case would not justify infliction of lesser sentence of imprisonment for life on the petitioner.
13. To sum up we are of the view that the prosecution had proved its case against the petitioner, beyond any shadow of doubt, who had killed the deceased in a day light occurrence and on this basis the petitioner has been rightly convicted for the murder of Gulman Shah and sentenced to death as well. We find no merit in this petition and, therefore, decline to grant leave to appeal to the petitioner.
Leave to .